Exhibit 4.9
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REGISTRATION RIGHTS AGREEMENT
dated
APRIL 19, 2001
by and among
AMC ENTERTAINMENT INC.
and
APOLLO INVESTMENT FUND IV, L.P.
APOLLO OVERSEAS PARTNERS IV, L.P.
APOLLO INVESTMENT FUND V, L.P.
APOLLO OVERSEAS PARTNERS V, L.P.
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TABLE OF CONTENTS
Page
SECTION 1. Definitions.............................................1
SECTION 2 Demand Registration.....................................4
SECTION 3. Piggyback Registration..................................6
SECTION 4. "MARKET STAND-OFF" AGREEMENT............................6
SECTION 5. Expenses................................................7
SECTION 6. Preparation and Filing..................................7
SECTION 7. Indemnification........................................10
SECTION 8. Underwriting Agreement.................................12
SECTION 9. Information by Holders.................................12
SECTION 10. Exchange Act Compliance................................13
SECTION 11. No Conflict of Rights..................................13
SECTION 12. TRANSFER OF REGISTRATION RIGHTS........................13
SECTION 13. MISCELLANEOUS..........................................13
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is
made and entered into this 19th day of April 2001 by and among (i) AMC
ENTERTAINMENT INC., a Delaware corporation (the "Company"), (ii) APOLLO
INVESTMENT FUND IV, L.P., a Delaware limited partnership ("AIF IV"), and
APOLLO OVERSEAS PARTNERS IV, L.P., a Cayman Islands exempted limited
partnership ("AOP IV"), and any other partnership or entity affiliated with
and managed by Apollo and over which Apollo exercises investment authority,
including voting and dispositive rights, and to which either AIF IV or AOP
IV assigns any of their respective interests hereunder (collectively, the
"Apollo IV Investors"), (iii) APOLLO INVESTMENT FUND V, L.P., a Delaware
limited partnership ("AIF V") and APOLLO OVERSEAS PARTNERS V, L.P., a
Cayman Islands exempted limited partnership ("AOP V"), and any other
partnership or entity affiliated with and managed by Apollo and over which
Apollo exercises investment authority, including voting and dispositive
rights, and to which either AIF V or AOP V assigns any of their respective
interests hereunder, consistent with the provisions hereof (collectively,
the "Apollo V Investors", and together with the Apollo IV Investors, the
"Investors" and individually, an "Investor"). Certain terms used and not
otherwise defined in the text of this Agreement are defined in Section 1 of
this Agreement.
RECITALS
WHEREAS, the parties to the Agreement are simultaneously
entering into that certain Investment Agreement of even date herewith (the
"Investment Agreement") pursuant to which the Investors have agreed to
purchase shares of Preferred Stock (as defined below) from the Company,
which are convertible into shares of the Company's Common Stock (as defined
below).
WHEREAS, the execution of this Agreement is an inducement
and a condition precedent to the purchase by the Investors of the shares of
Preferred Stock under the Investment Agreement.
NOW THEREFORE, the Company and the Investors, each,
intending to be legally bound hereto, agree as follows:
Section 1. Definitions. As used in this Agreement, the following
terms shall have the following meanings:
"Affiliate" means, with respect to any Person, (i) any
other Person directly or indirectly controlling or controlled by, or under
direct or indirect common control with, such specified Person; (ii) any
other Person that owns, directly or indirectly, ten percent or more of such
Person's capital stock or other equity interests or any officer or director
of any such Person or other Person; or (iii) with respect to any natural
Person, any person having a relationship with such Person by blood,
marriage or adoption not more remote than first cousin; provided, however,
that with respect to Apollo or the Apollo Purchasers, the term "Affiliate"
shall not include any limited partner of the Apollo Purchasers or their
Affiliates nor any portfolio or investee companies of the Apollo Purchasers
or their Affiliates so long as, in either case, (x) Apollo does not control
or have investment authority over such limited partner or portfolio or
investee company; (y) such limited partner or portfolio or investee company
does not operate in the domestic theatrical exhibition industry or
otherwise compete with the Company and (z) Apollo does not own, directly or
indirectly, 33% or more of such portfolio or investee company's capital
stock or other equity interests. For purposes of this definition, "control"
when used with respect to any specified Person means the power to direct
the management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and
the terms "controlling" and "controlled" shall have correlative meanings.
"Apollo" means Apollo Management IV, L.P., Apollo
Management V, L.P., and their respective Affiliates.
"Board" means the Board of Directors of the Company.
"Closing" has the meaning assigned to such term in the
Investment Agreement.
"Closing Date" has the meaning assigned to such term in
the Investment Agreement.
"Commission" means the United States Securities and
Exchange Commission or any other Federal agency at the time administering
the Securities Act and Exchange Act.
"Common Stock" means the Common Stock, par value $0.662/3
per share, of the Company.
"Demand Registration" has the meaning assigned to such
term in Section 2(a).
"Exchange Act" means the Securities Exchange Act of 1934,
as amended, or any similar successor federal statute, and the rules and
regulations of the Commission promulgated thereunder, all as the same shall
be in effect from time to time.
"Indemnified Party" has the meaning assigned to such term
in Section 7(a).
"Information" has the meaning assigned to such term in
Section 6(i).
"Inspectors" has the meaning assigned to such term in
Section 6(i).
"Investment Agreement" shall have the meaning assigned to
such term in the Recitals.
"Investor" and "Investors" shall have the meaning
assigned to such term in the Preamble.
"Lock-up Period" shall have the meaning assigned to such
term in Section 4.
"Losses" shall have the meaning assigned to such term in
Section 7(a).
"NASDAQ" means the automated quotation system of the
NASD.
"Other Shares" means the shares of Common Stock that are
not Registrable Shares.
"Person" shall be construed broadly and shall include,
without limitation, an individual, a partnership, an investment fund, a
limited liability corporation, a corporation, an association, a joint stock
corporation, a trust, a joint venture, an unincorporated organization and a
governmental entity or any department, agency or political subdivision
thereof.
"Piggyback Registration" shall have the meaning assigned
to such term in Section 3(a).
"Preferred Stock" means the Series A Preferred Stock and
the Series B Preferred Stock.
"Records" has the meaning assigned to such term in
Section 6(i).
"Registrable Shares" means (i) any shares of Common Stock
held by the Investors or any permitted transferee at any time, (ii) any
shares of Preferred Stock held by the Investors or any permitted transferee
at any time, (iii) any shares of Common Stock and/or Preferred Stock
issuable or issued upon conversion of the Preferred Stock held by the
Investors or any permitted transferee at any time, and (iv) any Common
Stock or Preferred Stock of the Company issued as (or issuable upon the
conversion or exercise of any warrant, right or other security that is
issued as) a dividend or other distribution with respect to, or in exchange
for, or in replacement of, the shares referenced in (i), (ii) and (iii)
above; except, in each case, for shares of Common Stock and/or Preferred
Stock (x) the sale of which is covered by a registration statement that has
been declared effective under the Securities Act or (y) which are eligible
to be resold under Rule 144(k).
"Rule 144" means Rule 144 promulgated under the
Securities Act or any successor rule thereto or any complementary rule
thereto.
"Securities Act" means the Securities Act of 1933, as
amended, or any similar successor federal statute, and the rules and
regulations of the Commission promulgated thereunder, all as the same shall
be in effect from time to time.
"Selling Holder" shall have the meaning assigned to such
term in Section 6(b).
"Selling Holders' Counsel" shall have the meaning
assigned to such term in Section 6(b).
"Series A Preferred Stock" means the Company's Series A
Convertible Preferred Stock, par value $0.66 2/3 per share.
"Series B Preferred Stock" means the Company's Series B
Exchangeable Preferred Stock, par value $0.66 2/3 per share.
"Standstill Agreement" shall mean the Standstill
Agreement entered into on the date hereof by and between the Company,
Apollo, and the Apollo Investors.
Section 2. Demand Registration.
(a) Subject to subparagraphs (i), (ii) and (iii) below and at any
time
beginning 180 days after the date of execution of this Agreement, holders
of at least 30% of the total number of outstanding Registrable Shares
(assuming conversion of all shares of Preferred Stock into Common Stock)
may make a written request to the Company to effect a registration under
the Securities Act of all or a portion of the Registrable Shares held by
such requesting holders in accordance with this Section 2 (a "Demand
Registration"). The request shall specify the number of Registrable Shares
proposed to be included in such Demand Registration and the intended method
of distribution, which may be pursuant to a shelf registration. The Company
shall promptly use its best efforts to effect a Demand Registration, as
expeditiously as possible, on an appropriate form under the Securities Act
of the Registrable Shares which the Company has been so requested to
register; provided, however, that the Company shall not be obligated to
effect any Demand Registration under the Securities Act except in
accordance with the following provisions:
(i) the Company shall not be obligated to file more than five
registration statements in total pursuant to this Section 2,
subject to paragraph (c) below;
(ii) the Company shall not be obligated to file any
registration statement during any period in which (A) any other
registration statement (other than on Form S-4 or Form S-8
promulgated under the Securities Act or any successor forms
thereto) pursuant to which Registrable Shares are to be or were
sold has been filed and not withdrawn or has been declared
effective within the prior 90 days or (B) the Company has
determined in good faith that the filing of a registration
statement would require the disclosure of material information
that the Company has a bona fide business purpose for preserving
as confidential, such filing to be delayed until the date which is
90 days after such request for registration pursuant to this
Section 2(a), provided, that the Company may only so delay the
filing or effectiveness of a registration statement
pursuant to this Section 2(a)(ii)(B) on one occasion during any
twelve-month period; and
(iii) with respect to the Demand Registration pursuant to
this Section 2, the Company may include in such Demand
Registration securities that are not Registrable Shares if, in the
view of the managing underwriter, the inclusion thereof will not
adversely affect such offering. If such Demand Registration is an
underwritten offering and the managing underwriter advises the
Company in writing that the inclusion of all Registrable Shares
and the Other Shares proposed to be included in such Demand
Registration would interfere with the successful marketing
(including pricing) of all such securities, then the number of
Registrable Shares and Other Shares proposed to be included in
such Demand Registration shall be included in the following order:
(A) First, up to the number of Registrable Shares
requested to be included which in the opinion of the managing
underwriter can be sold without adversely affecting the
marketability of the offering, pro rata among the respective
holders thereof on the basis of the amount of Registrable
Shares requested to be included in the offering by each such
holder;
(B) Second, any Other Shares the Company proposes to be
included in the Demand Registration; and
(C) Third, any Other Shares requested to be included in
the Demand Registration by any holder having contractual
registration rights.
(b) The holders of Registrable Shares requesting a Demand
Registration may, in the notice delivered pursuant to paragraph 2(a) above,
elect that such Demand Registration be an underwritten offering. Upon such
election, such holders shall select one or more nationally recognized
investment banks to act as the managing underwriter and shall select any
additional investment banks to be used in connection with such offering,
provided that such managing underwriter and investment banks must be
reasonably satisfactory to the Company. The Company shall, together with
all holders proposing to sell Registrable Shares in such offering, enter
into a customary underwriting agreement with such underwriters.
(c) A request for a Demand Registration may be withdrawn by
written notice to the Company by the holders a majority of the Registrable
Shares to be included in such registration with the following consequences:
(i) If such request for a Demand Registration is withdrawn
prior to the filing date of the registration statement, such
withdrawn registration shall not count as a Demand Registration
for purposes of paragraph (a) above;
(ii) If such request for a Demand Registration is withdrawn
after the filing date of the registration statement but prior to
its effective date, such withdrawn registration shall not count as
a Demand Registration for purposes of paragraph (a) above if the
participating holders (x) have reimbursed the Company for all
out-of-pocket expenses incurred by the Company in connection with
such withdrawn registration or (y) (1) reasonably believed that
the registration statement contained an untrue statement of
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements made therein
not misleading, (2) notified the Company of such fact and
requested that the Company correct such alleged misstatement or
omission and (3) the Company has refused to correct such alleged
misstatement or omission; and
(iii) A registration statement that becomes effective shall
count as a Demand Registration for purposes of paragraph (a) above
unless (x) the registration statement becomes subject to a stop
order, injunction or other order of the Commission or any other
governmental agency or court or (y) the conditions to closing
specified in the purchase agreement or underwriting agreement
entered into in connection with such registration are not
satisfied, other than by some act or omission by the holders.
Section 3. Piggyback Registration.
(a) If at any time the Company proposes for any reason to register
Other Shares under the Securities Act (other than on Form S-4 or Form S-8
promulgated under the Securities Act or any successor forms thereto), it
shall promptly give written notice to the holders of Registrable Shares of
its intention to so register the Other Shares and, upon the written
request, given within 15 days after delivery of any such notice by the
Company, of any holders of Registrable Shares to include in such
registration Registrable Shares held by such holders (which request shall
specify the number of Registrable Shares proposed to be included in such
registration) (a "Piggyback Registration"), the Company shall use its
reasonable best efforts to cause all such Registrable Shares to be included
in such Piggyback Registration on the same terms and conditions as the
Other Shares (of similar type as the Registrable Securities) otherwise
being sold in such Piggyback Registration; provided, however, that if the
managing underwriter advises the Company that the inclusion of all
Registrable Shares or Other Shares proposed to be included in such
Piggyback Registration would interfere with the successful marketing
(including pricing) of the Other Shares proposed to be registered by the
Company, then the number of Registrable Shares and Other Shares proposed to
be included in such Piggyback Registration shall be included in the
following order:
(i) First, the Other Shares to be registered by the Company;
(ii) Second, Registrable Shares, pro rata based upon the
total number of Registrable Shares sought to be included in the
registration and shares having piggyback rights owned by each
holder at the time of such registration; and
(iii) Third, Other Shares (not included in clause (i) above)
having contractual or incidental piggyback rights, pro rata based
upon the total number of such Other Shares owned by each holder at
the time of such registration.
(b) In connection with any offering under this Section 3 involving
an underwriting, the Company shall not be required to include a holder's
Registrable Shares in the underwritten offering unless such holder accepts
the terms of the underwriting as agreed upon between the Company and the
underwriters selected by the Company.
Section 4. "Market Stand-Off" Agreement. If requested by the
Company and an underwriter of any capital stock or other securities of the
Company, a holder shall not sell or otherwise transfer or dispose of any
Registrable Shares or any other shares of capital stock of the Company held
by such holder (other than those included in the registration) during the
180 day period following the effective date of a registration statement of
the Company filed under the Securities Act, or for such shorter period as
the officers and directors of the Company shall agree (the "Lock-Up
Period").
The obligations described in this Section 4 shall not apply
to a
registration relating solely to employee benefit plans on Form S-1 or Form
S-8 or similar forms that may be promulgated in the future. The Company may
impose stop-transfer instructions with respect to the shares of Common
Stock (or other securities) subject to the foregoing restriction until the
end of such Lock-Up Period.
Section 5. Expenses. The Company shall bear the expense of any
registrations effected pursuant to Sections 2 and 3 including, without
limitation, all registration and filing fees (including all expenses
incident to filing with the American Stock Exchange or any other national
securities exchange where the Registrable Shares are listed or accepted for
trading), fees and expenses of complying with securities and blue sky laws,
printing expenses, and fees and expenses of the Company's counsel and
accountants, and the fees and expenses of the Selling Holders' Counsel (as
defined below) of up to $25,000 for each registration, but excluding any
underwriters' or brokers' discounts or commissions, transfer taxes (to the
extent that such taxes are required by law to be paid by the Selling
Holders) and the fees of any counsel, accountants or advisors to any
Selling Holder, other than the Selling Holders' Counsel.
Section 6. Preparation and Filing. If and whenever the Company is
under an obligation pursuant to the provisions of this Agreement to use its
reasonable best efforts to effect the registration of any Registrable
Shares, the Company shall, as expeditiously as practicable:
(a) with respect to a registration under Sections 2 and 3, use its
reasonable best efforts to cause a registration statement that proposes to
register such Registrable Shares to become and remain effective for a
period of 270 days or until all of such Registrable Shares have been
disposed of (if earlier);
(b) furnish, at least five business days before filing a
registration statement that proposes to register such Registrable Shares, a
prospectus relating thereto or any amendments or supplements relating to
such registration statement or prospectus, to each holder of Registrable
Shares (the "Selling Holder"), to any counsel to any Selling Holder and to
one counsel selected by the holders of a majority of such Registrable
Shares (the "Selling Holders' Counsel"), copies of all such documents
proposed to be filed;
(c) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus related
thereto as may be necessary to keep such registration statement effective
for at least the periods set forth in Section 6(a) or until all of such
Registrable Shares have been disposed of (if earlier) and to comply with
the provisions of the Securities Act with respect to the sale or other
disposition of such Registrable Shares;
(d) notify in writing any counsel to any Selling Holder and the
Selling Holders' Counsel promptly (i) of the receipt by the Company of any
notification with respect to any comments by the Commission with respect to
such registration statement or prospectus or any amendment or supplement
thereto or any request by the Commission for the amending or supplementing
thereof or for additional information with respect thereto, (ii) of the
receipt by the Company of any notification with respect to the issuance by
the Commission of any stop order suspending the effectiveness of such
registration statement or prospectus or any amendment or supplement thereto
or the initiation or threatening of any proceeding for that purpose and
(iii) of the receipt by the Company of any notification with respect to the
suspension of the qualification of such Registrable Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purposes;
(e) use its best efforts to register or qualify such Registrable
Shares under such other securities or blue sky laws of such jurisdictions
as any seller of Registrable Shares reasonably requests and do any and all
other acts and things which may be reasonably necessary or advisable to
enable such seller of Registrable Shares to consummate the disposition in
such jurisdictions of the Registrable Shares owned by such seller;
provided, however, that the Company will not be required to qualify
generally to do business, subject itself to general taxation or consent to
general service of process in any jurisdiction where it would not otherwise
be required so to do but for this paragraph (e);
(f) furnish to each seller of such Registrable Shares such number
of copies of a summary prospectus or other prospectus, including a
preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as such Selling Holder may
reasonably request in order to facilitate the public sale or other
disposition of such Registrable Shares;
(g) use its best efforts to cause such Registrable Shares to be
registered with or approved by such other governmental agencies or
authorities as may be necessary by virtue of the business and operations of
the Company to enable the seller or sellers thereof to consummate the
disposition of such Registrable Shares;
(h) notify on a timely basis each Selling Holder at any time when
a prospectus relating to such Registrable Shares is required to be
delivered
under the Securities Act within the appropriate period mentioned in
paragraph (a) of this Section, of the happening of any event as a result of
which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing and, at the request of such seller, prepare and furnish to such
seller a reasonable number of copies of a supplement to or an amendment of
such prospectus as may be necessary so that, as thereafter delivered to the
offerees of such shares, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(i) make available for inspection by any counsel to any Selling
Holder and the Selling Holders' Counsel or any underwriter participating in
any disposition pursuant to such registration statement and any attorney,
accountant or other agent retained by any such underwriter (collectively,
the "Inspectors"), all pertinent financial and other records, pertinent
corporate documents and properties of the Company (collectively, the
"Records"), as shall be reasonably necessary to enable them to exercise
their due diligence responsibility, and cause the Company's officers,
directors and employees to supply all information (together with the
Records, the "Information") reasonably requested by any such Inspector in
connection with such registration statement. Any of the Information which
the Company determines in good faith to be confidential, and of which
determination the Inspectors are so notified, shall not be disclosed by the
Inspectors unless (i) the disclosure of such Information is necessary to
avoid or correct a material misstatement or omission in the registration
statement, (ii) the release of such Information is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction or (iii)
such Information has been made generally available to the public; the
Selling Holder agrees that it will, upon learning that disclosure of such
Information is sought in a court of competent jurisdiction, give notice to
the Company and allow the Company, at the Company's expense, to undertake
appropriate action to prevent disclosure of the Information deemed
confidential;
(j) if the offering is to be underwritten, enter into any
necessary agreement in connection therewith (including an underwriting
agreement containing customary representations, warranties and agreements);
(k) in the case of an underwritten offering, use its best efforts
to obtain from its independent certified public accountants "comfort"
letters in customary form and at customary times and covering matters of
the type customarily covered by comfort letters;
(l) in the case of an underwritten offering, use its best efforts
to obtain from its outside counsel an opinion or opinions in
customary form;
(m) provide a transfer agent and registrar (which may be the same
entity and which may not be the Company) for such Registrable Shares;
(n) issue to any underwriter to which any Selling Holder may sell
shares in such offering certificates evidencing such Registrable Shares;
(o) list such Registrable Shares on the American Stock Exchange or
any national securities exchange on which any shares of the Common Stock
are listed, or if the Common Stock is not listed on a national securities
exchange, use its best efforts to qualify such Registrable Shares for
inclusion on such national securities exchange or NASDAQ as the holders of
a majority of such Registrable Shares shall request;
(p) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission and make available to its
securityholders, as soon as reasonably practicable, earnings statements
(which need not be audited) covering a period of 12 months beginning within
three months after the effective date of the registration statement, which
earnings statements shall satisfy the provisions of Section 11(a) of the
Securities Act; and
(q) use its best efforts to take all other steps necessary to
effect the registration of such Registrable Shares contemplated hereby.
Section 7. Indemnification.
(a) In connection with any registration of any Registrable Shares
under the Securities Act pursuant to this Agreement, the Company shall
indemnify and hold harmless the seller of such Registrable Shares, its
officers and directors, each underwriter, broker or any other person acting
on behalf of such seller and each other person, if any, who controls any of
the foregoing persons within the meaning of the Securities Act (the
"Indemnified Party") against any losses, claims, damages or liabilities,
joint or several (or actions in respect thereof), to which any Indemnified
Party may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
("Losses") arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the registration statement
under which such Registrable Shares were registered under the Securities
Act, any preliminary prospectus or final prospectus contained therein or
otherwise filed with the Commission, any amendment or supplement thereto or
any document incident to registration or qualification of any Registrable
Shares, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and shall reimburse such
Indemnified Party for any legal or other expenses reasonably incurred by
any of them in connection with investigating or defending any Losses;
provided, however, that the Company shall not be liable in any such case to
the extent that any Losses arise out of or are based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
in said registration statement, preliminary prospectus, final prospectus,
amendment, supplement or document incident to registration or qualification
of any Registrable Shares in reliance upon and in conformity with written
information furnished to the Company through an instrument duly executed by
such Selling Holder or underwriter specifically for use in the preparation
thereof; provided, further, that with respect to any preliminary
prospectus, the foregoing indemnity shall not inure to the benefit of (a)
any underwriter or, in the case of a registration statement filed with
respect to an offering which is not an underwritten offering, any Selling
Holder, from whom the person asserting any Losses purchased Registrable
Shares or (b) any Person controlling such underwriter or Selling Holder, if
(i) a copy of the prospectus (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) was
required by law to have been delivered by such underwriter or Selling
Holder (as applicable), (ii) the prospectus had not been sent or given by
or on behalf of such underwriter or Selling Holder (as applicable) to such
person with or prior to a written confirmation of the sale of the
Registrable Shares to such person, (iii) the prospectus (as so amended and
supplemented) would have cured the defect giving rise to the Losses and
(iv) such failure to deliver the prospectus (as so amended and
supplemented) was not the result of noncompliance by the Company with
Section 6(f) hereof.
(b) In connection with any registration of Registrable Shares
under the Securities Act pursuant to this Agreement, each Selling Holder
shall indemnify and hold harmless (in the same manner and to the same
extent as set forth in the preceding paragraph of this Section) the
Company, each director of the Company, each officer of the Company, each
underwriter, broker or other person acting on behalf of such Selling
Holder, each person who controls any of the foregoing persons within the
meaning of the Securities Act and each other Selling Holder under such
registration statement with respect to any statement or omission from such
registration statement, any preliminary prospectus or final prospectus
contained therein or otherwise filed with the Commission, any amendment or
supplement thereto or any document incident to registration or
qualification of any Registrable Shares, if such statement or omission was
made in reliance upon and in conformity with written information furnished
to the Company or such underwriter through an instrument duly executed by
such Selling Holder specifically for use in connection with the preparation
of such registration statement, preliminary prospectus, final prospectus,
amendment, supplement or document; provided, however, that the obligation
to indemnify will be several, not joint and several, among such Selling
Holder, and the maximum amount of liability in respect of such
indemnification shall be in proportion to and limited to, in the case of
each Selling Holder, an amount equal to the net proceeds actually received
by such Selling Holder from the sale of Registrable Shares effected
pursuant to such registration.
(c) The indemnification required by this Section 7 will be made by
periodic payments during the course of the investigation or defense, as and
when bills are received or expenses incurred, subject to prompt refund in
the event any such payments are determined not to have been due and owing
hereunder.
(d) Promptly after receipt by an Indemnified Party of notice of
the commencement of any action involving a claim referred to in the
preceding paragraphs of this Section 7, such Indemnified Party will, if a
claim in respect thereof is made against an indemnifying party, give
written notice to the latter of the commencement of such action (it being
understood that no delay in delivering or failure to deliver such notice
shall relieve the indemnifying persons from any liability or obligation
hereunder unless (and then solely to the extent that) the indemnifying
person is prejudiced by such delay and/or failure). In case any such action
is brought against an Indemnified Party, the indemnifying party will be
entitled to participate in and to assume the defense thereof, jointly with
any other indemnifying party similarly notified to the extent that it may
wish, with counsel reasonably satisfactory to such Indemnified Party, and
after notice from the indemnifying party to such Indemnified Party of its
election so to assume the defense thereof, the indemnifying party shall not
be responsible for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof; provided, however, that if
any Indemnified Party shall have reasonably concluded that there may be one
or more legal or equitable defenses available to such Indemnified Party
which are additional to or conflict with those available to the
indemnifying party, or that such claim or litigation involves or could have
an effect upon matters beyond the scope of the indemnity agreement provided
in this Section 7, the indemnifying party shall not have the right to
assume the defense of such action on behalf of such Indemnified Party and
such indemnifying party shall reimburse such Indemnified Party and any
person controlling such Indemnified Party for that portion of the fees and
expenses of any counsel retained by the Indemnified Party which is
reasonably related to the matters covered by the indemnity agreement
provided in this Section 7.
(e) The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or
on behalf of the Indemnified Party or any officer, director or controlling
person of such Indemnified Party and will survive the transfer of
securities.
(f) If the indemnification provided for in this Section 7 is held
by a court of competent jurisdiction to be unavailable to an Indemnified
Party with respect to any Losses then the indemnifying party, in lieu of
indemnifying such Indemnified Party hereunder, shall contribute to the
amounts paid or payable by such Indemnified Party as a result of such
Losses in such proportion as is appropriate to reflect the relative fault
of the indemnifying party on the one hand and of the Indemnified Party on
the other in connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the Indemnified Party shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
indemnifying party or by the Indemnified Party and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Selling Holders
agree that it would not be just and equitable if contributions pursuant to
this paragraph 7(f) were determined by pro rata allocation or by any other
method of allocation which did not take into account the equitable
considerations referred to herein. The amount paid or payable to an
Indemnified Party as a result of the Losses referred to above shall be
deemed to include, subject to the limitation set forth in paragraph 7(d),
any legal or other expenses reasonably incurred in connection with
investigating or defending the same. Notwithstanding the foregoing, in no
event shall the amount contributed by a seller of Registrable Shares exceed
the aggregate net offering proceeds received by such seller from the sale
of its Registrable Shares.
Section 8. Underwriting Agreement. Notwithstanding the provisions
of Sections 6 and 7, to the extent that the Company and the Selling Holders
shall enter into an underwriting or similar agreement, which agreement
contains provisions covering one or more issues addressed in such sections,
the provisions contained in such sections addressing such issue or issues
shall be superseded with respect to such registration by such other
agreement.
Section 9. Information by Holders. The Selling Holders shall
furnish to the Company such written information regarding such Selling
Holder and the distribution proposed by such Selling Holder as the Company
may reasonably request in writing and as shall be reasonably required in
connection with any registration, qualification or compliance referred to
in this Agreement.
Section 10. Exchange Act Compliance. The Company shall comply with
all of the reporting requirements of the Exchange Act and with all other
public information reporting requirements of the Commission which are
conditions to the availability of Rule 144 for the sale of the Registrable
Shares. The Company shall cooperate with the Investors in supplying such
information as may be necessary for the Investors to complete and file any
information reporting forms presently or hereafter required by the
Commission as a condition to the availability of Rule 144.
Section 11. No Conflict of Rights. The Company represents and
warrants to the Investors that the registration rights granted to the
Investors hereby do not conflict with any other registration rights granted
by the Company. The Company may grant, after the date hereof, registration
rights to holders of capital stock of the Company to the extent that such
registration rights do not conflict with the registration rights granted
hereby.
Section 12. Transfer of Registration Rights. The rights hereunder
may be transferred or assigned in connection with a transfer of Registrable
Securities by any Investor to an Affiliate of an Investor. Additionally,
the rights hereunder may be transferred or assigned in connection with a
transfer of at least 10% of the then outstanding Registrable Shares by any
Investor; provided, such transfer has been made in compliance with the
terms of the Standstill Agreement. Notwithstanding the foregoing, such
rights may only be transferred or assigned provided that all of the
following additional conditions are satisfied: (a) such transfer or
assignment is effected in accordance with applicable securities laws; (b)
such transferee or assignee agrees in writing to become subject to the
terms of this Agreement; and (c) the Company is given written notice by
such Investor of such transfer or assignment, stating the name and address
of the transferee or assignee and identifying the Registrable Securities
with respect to which such rights are being transferred or assigned.
Section 13. Miscellaneous.
(a) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law
or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or any other
jurisdiction, and such invalid, void or otherwise unenforceable provisions
shall be null and void. It is the intent of the parties, however, that any
invalid, void or otherwise unenforceable provisions be automatically
replaced by other provisions which are as similar as possible in terms to
such invalid, void or otherwise unenforceable provisions but are valid and
enforceable to the fullest extent permitted by law.
(b) Entire Agreement. This Agreement, together with the Investment
Agreement, the Standstill Agreement and all schedules, exhibits,
certificates and other documents delivered therewith, contains the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior arrangements or understandings with respect hereto.
(c) Successors and Assigns. This Agreement shall bind and inure to
the benefit of the Company and the Investors and their respective
successors and permitted assigns.
(d) Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, any one of which need not contain the signatures
of more than one party, but all such counterparts taken together will
constitute one and the same agreement. It shall not be necessary in making
proof of this Agreement to produce or account for more than one such
counterpart. The failure of any Investor to execute this Agreement does not
make it invalid as against any other Investor.
(e) Remedies. The Investors shall have all rights and remedies
reserved for the Investors pursuant to this Agreement and the Certificate
of Incorporation and the Bylaws of the Company, as amended, and all rights
and remedies which such Investor has been granted at any time under any
other agreement or contract and all of the rights which such holder has
under any law or equity. Any person having any rights under any provision
of this Agreement will be entitled to enforce such rights specifically, to
recover damages by reason of any breach of any provision of this Agreement
and to exercise all other rights granted by law or equity.
It is acknowledged that it will be impossible to measure in
money
the damages that would be suffered if the parties fail to comply with any
of the obligations herein imposed on them and that in the event of any such
failure, an aggrieved person will be irreparably damaged and will not have
an adequate remedy at law. Any such person shall, therefore, be entitled to
injunctive relief, including specific performance, to enforce such
obligations, and if any action should be brought in equity to enforce any
of the provisions of this Agreement, none of the parties hereto shall raise
the defense that there is an adequate remedy at law.
(f) Notices. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument and shall be deemed to have been duly
given when delivered in person, by telecopy, by nationally-recognized
overnight courier, or by first class registered or certified mail, postage
prepaid, addressed to such party at the address set forth below or such
other address as may hereafter be designated in writing by the addressee to
the addressor:
(i) if to the Company, to:
AMC Entertainment Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ & ▇▇▇▇ ▇.▇.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) and, if to the Investors, to:
Apollo Investment Fund IV, L.P.
Apollo Overseas Partners IV, L.P.
c/o Apollo Management IV, L.P.
and
Apollo Investment Fund V, L.P.
Apollo Overseas Partners V, L.P.
c/o Apollo Management V, L.P.
1301 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, LLP
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
All such notices, requests, consents and other communications shall be
deemed to have been delivered when received, or if received after the close
of business, on the next business day.
(g) Governing Law; Jurisdiction; Venue; Process. This Agreement
shall be governed by and construed in accordance with the laws of the State
of New York without regard to any choice of law or conflict of law
provision or rule that would cause the application of the laws of any
jurisdiction other than the State of New York. Any legal action in a
proceeding arising out of or in connection with this Agreement shall be
brought in the courts of the State of New York, of the County and City of
New York or of the United States District Court for the Southern District
of New York, and by execution and delivery of this Agreement, the parties
hereby irrevocably accept for themselves and in respect of their property,
generally and unconditionally, the exclusive jurisdiction of the aforesaid
courts. The parties hereby irrevocably waive any objection which they may
now or hereafter have to laying of jurisdiction or venue of any actions or
proceedings arising out of or in connection with this Agreement brought in
the courts referred to above and hereby further irrevocably waive and
agree, not to plead or claim in any such court that any such action or
proceeding has been brought in an inconvenient forum. The parties further
agree that the mailing by certified or registered mail, return receipt
requested, of any process required by any such court shall constitute valid
and lawful service of process against them, without necessity for service
by any other means provided by statute or rule of court.
(h) Further Assurances. Each party hereto shall do and perform or
cause to be done and performed all such further acts and things and shall
execute and deliver all such other agreements, certificates, instruments,
and documents as any other party hereto reasonably may request in order to
carry out the provisions of this Agreement and the consummation of the
transactions contemplated hereby.
(i) Modifications; Amendments; Waivers. The terms and provisions
of this Agreement may not be modified, amended or waived, except pursuant
to a writing signed by the Company and the Investors provided, however,
Sections 7 through 11 may be amended pursuant to a writing signed by the
Company and the holders of a majority of the Registrable Shares.
(j) Headings. The headings of the various Sections of this
Agreement have been inserted for convenience of reference only and shall
not be deemed to be a part of this Agreement.
(k) Waiver. No course of dealing between the Company and the
Investors or any delay in exercising any rights hereunder will operate as a
waiver of any rights of any party to this Agreement. The failure of any
party to enforce any of the provisions of this Agreement will in no way be
construed as a waiver of such provisions and will not affect the right of
such party thereafter to enforce each and every provision of this Agreement
in accordance with its terms.
(l) Mutual Waiver of Jury Trial. BECAUSE DISPUTES ARISING IN
CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND
ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES
WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION
RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE
APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION
OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES
HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING
BROUGHT TO ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES UNDER THIS AGREEMENT OR
ANY DOCUMENTS RELATED HERETO.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first written above.
AMC ENTERTAINMENT INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman of the Board,
President and Chief
Executive
Officer
APOLLO INVESTMENT FUND IV, L.P.
By: APOLLO ADVISORS IV, L.P.
its general partner
By: Apollo Capital Management IV, Inc.
its general partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
APOLLO OVERSEAS PARTNERS IV, L.P.
By: APOLLO ADVISORS IV, L.P.
its managing general partner
By: Apollo Capital Management IV, Inc.
its general partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
APOLLO INVESTMENT FUND V, L.P.
By: APOLLO ADVISORS V, L.P.
its general partner
By: Apollo Capital Management V, Inc.
its general partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
APOLLO OVERSEAS PARTNERS V, L.P.
By: APOLLO ADVISORS V, L.P.
its managing general partner
By: Apollo Capital Management V, Inc.
its general partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President